Accessibility Litigation Trends

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If you’re not all in, you need to get out quickly. That seems to be a theme that runs through many of this week’s roundup of recent decisions. As we will see several times below, ADA lawsuits generally require a decision to surrender or fight to the death at the beginning of the case. Anything usually results in money wasted on attorneys’ fees. That said, defendants continue to succeed in some cases, justifying a close look at the particular court and its history before making a decision on how to proceed.

Website accessibility and mootness.

One way to moot a website accessibility claim would seem to be replacing the entire website as was done in Carroll v. New People’s Bank, Inc.,2018 WL 1659482 (W.D. Va. Apr. 5, 2018). If the old inaccessible website no longer exists, claims arising out of its inaccessibility must be moot. Or maybe not. In Wu v. Jensen-Lewis Co, Inc. 2018 WL 5723122, at *3 (S.D.N.Y. Nov. 1, 2018) the defendant tried the same defense that had worked in Carroll v. New People’s Bank; that is, that the plaintiffs claims were moot because the old website had been completely replace. The Court disagreed with an explanation that shows how important theory can be. The Court pointed out that Wu did not claim the website itself was a public accommodation. In that case replacing the entire website would have mooted the claim. Wu’s claim, on the contrary, was that the website was a service provided by a brick and mortar store. Exchanging one inaccessible service for another could not moot the basic claim. The logic isn’t flawless and requires at the very least an amended complaint, Wu v. Jensen-Lewis gives plaintiffs an easy way to plead around any possible mootness defense for website accessibility and strengthens the hand of plaintiffs’ counsel in the rapidly growing website accessibility litigation industry.

A credit union win on website accessibility.

In Walter Mitchell, Pl. v. Toledo Metro Credit Union, Def., 2018 WL 5435416 (N.D. Ohio Oct. 29, 2018) the Court followed many other district courts in finding that a plaintiff who did not qualify for membership in a credit union could not show a concrete injury from the inaccessibility of its website. The Court rejected the idea that merely being unable to use the website was itself an injury, writing that:

The injury that Mitchell alleges – an affront to his dignity resulting from his inability to use the online-banking services on the Credit Union’s website – is not one that “Congress identified and elevated…to the status of a legally cognizable injury.”

District courts are split on this argument as it relates to websites, but it raises an issue that would seem to have been resolved in physical access cases. Most courts never ask whether a plaintiff was actually obstructed in his ability to access goods and services by a ramp steeper than the guidelines allow or a door narrower than is permitted. They hold instead that a condition that violates the relevant standards is by definition discriminatory. That kind of holding can only be based on the notion of an affront to dignity and is the foundation of the serial litigation industry, which relies on technical violations rather than proof of actual harm. The possibility of ADA reform is remote, but the first step toward making it a statute to protect the disabled instead of a money making tool for lawyers would be to require real injury as a prerequisite to the right to sue.

Who owns what always matters.

Arroyo v. Aldabashi, 2018 WL 4961637 (N.D. Cal. Oct. 15, 2018) is an interesting case for only one reason. The plaintiff won by default, but didn’t bother to get an injunction requiring remediation. The defendants owned or operated a restaurant/store. They filed an answer admitting, among other things, that they owned and operated the property. However, after that their attorney withdrew, the answer was stricken and the court entered a default judgment. The only problem was that at the default hearing plaintiff’s counsel admitted they had not recently checked on who owned the property. Without that evidence the court was unwilling to order remediation since, after all, an injunction that didn’t bind the property owner was pointless. What’s odd is that having gone so far the plaintiff and his lawyers didn’t just go do what the judge wanted; that is, check on current ownership. I suspect the answer is that they judge was going to award damages and attorneys’ fees under the Unruh Act and that’s all they really wanted anyhow.

Truong v. Garden Square Parking Assn., 2018 WL 4961597 (C.D. Cal. Oct. 11, 2018) reached the opposite result because the plaintiff provided information from the deed and tax records sufficient to show ownership of the parking lot at issue. It is notable only in that the defendant spent time arguing about ownership when it apparently did not take the time to assemble any competent evidence. This is a reminder that in ADA litigation the strategies are either settle early to minimize fees, or fight all out with the intent of winning. Half-measures just lead to wasting money.

Starbucks won a case claiming its service counters were not wide enough by arguing for an exception to the ADA’s general requirement in the ADA Standards that a portion of any service counter at least 36″ wide and no more than 36″ high be provided. The exception states that when the service counter is less than 36″ wide it must simply all be no more than 36″ high. Starbucks put on evidence that some service counters were narrower than 36″ and so they fit the exception and defeated Johnson’s Motion for Summary Judgment. The court did not consider whether a “service counter” necessarily included the entire width of the space that included the service area.

In another Johnson v. Starbucks, case, this one reported at 2018 WL 5099283 (N.D. Cal. Oct. 17, 2018) Starbucks showed that service counters that were once too high had been remediated. Johnson argued that the remediation did not fix the problem because given the merchandise displayed on the counters the available width was less than 36″. Starbucks, for its part, argued that counter clutter didn’t matter because if there was only single service counter at the appropriate height there was no minimum clear width requirement. The Court declined to rule on the question in the absence of specific evidence about the nature and location of the displays. This seems to reject Johnson’s claim that 36 inches is an absolute minimum, but doesn’t address the issue of how much less is still enough.

It would seem that Starbucks has the better of the argument when the purpose of the ADA – equality of access – is taken into account. For a person in a wheelchair who enough space on the ground to make a parallel approach (something that was not at issue in these cases) the difference in accessibility depends on height, not width. If the clear area is only 24″ wide for everyone, disabled or not, then it hardly makes sense to say the disabled customer has been a victim of discrimination. This seems to be recognized by the exception in Section 904.4.1 of the 2010 Standards, for if a minimum width were necessary for access by those in a wheelchair allowing any counter to be less than 36″ wide would not make sense. Given the controversy though, it is worth asking whether the 9th Circuit’s claim that the ADA Standards are “as precise as they are thorough” is really true.** There will always be, it seems, some gaps to be filled in by common sense.

Motive doesn’t matter.

I complain from time to time about the motives of serial plaintiffs and their attorneys (see above) but it is worth remembering that having a pure heart is not a requirement for either plaintiff’s or their counsel.† In Lindsay v. Erwine Props., LLC, 2018 WL 5099670, at *1 (C.D. Cal. Oct. 18, 2018) the Court decried what it saw as “a troubling trend in which disability access defendants attack the motives of plaintiffs and their counsel . . .” quoting Kittok v. Leslie’s Poolmart, Inc., 687 F. Supp. 2d 953, 958 (C.D. Cal. 2009). The issue was attorneys’ fees, a predictable generator of defense outrage, but the complaints resulted in only a few hundred dollars of cuts; certainly less than the cost of the opposing the motion. The real problem was the defendants let the case move forward to a formal mediation instead of pushing for early settlement. Every step forward in an ADA case costs money, so decisions about strategy must be made quickly at the beginning of the case.

Mootness done right.

Tobia v. Burlington Coat Factory of Texas Inc., 2018 WL 5023421 (E.D. Cal. Oct. 16, 2018) stands for the simple proposition that if you fix everything you can win an ADA lawsuit. The plaintiff was pro se and therefore at a disadvantage, but the defendants defended the case with appropriate and conclusive admissible evidence and won.

Policies and temporary obstructions.

Our last blog on the importance of appropriate ADA policies won a weekly award for best blog by Texas Bar Today (“ADA Compliance Policies and Procedures – you need them, and now.“). Khan v. Cleveland Clinic Florida Hospital, 2018 WL 5456492, at *7 (S.D. Fla. Oct. 29, 2018) serves as a reminder of why this is such an important topic. The defendant had a long row to hoe, but it did great until policies came into play. First it won a 4 day trial on claims of common law negligence. Then it got all the plaintiff’s ADA claims based on physical barriers to access dismissed based on mootness. The last claims, which were based on trash collectors that blocked accessible restrooms, proved harder to avoid. The defendant wanted these claims dismissed, but the Court found there were unresolved questions requiring trial about whether the defendant had policies in place that would moot claims based on the location of movable trash bins. We’ve talked about the problems with temporary obstructions in past blogs, but the long and short of it is that you must have a policy against obstructing access and that policy must be enforced if you want to at least minimize litigation exposure created by employees who don’t understand why this is important.‡

Default as a strategy

Lopez v. Macca Corp., 2018 WL 5310770, at *6 (C.D. Cal. Oct. 22, 2018) and Johnson v. Shri Jai Ranchhodrai, Inc., 2018 WL 5617228, at *10 (N.D. Cal. Oct. 29, 2018) are two more in the long line of cases I’ve discussed in which default proved the most cost effective strategy for a small business with undeniable ADA problems. The judgment in Lopez for not quite $6,000 and the judgment in Johnson for about $4000 plus damages under California state law were almost certainly cheaper than mounting any kind of effective defense. Surrender isn’t a strategy suitable for everyone, but it may make sense for a small business after it consults and an attorney familiar with local practice.

We aren’t quite to Halloween, but the candy is certainly crowding the shelves of local stores, whose owners might want to take a look at Ryan v. Kohls, Inc., discussed below. Beyond that we have the usual roundup of default judgment cases, website accessibility standing cases, and of course some ordinary “drive-by” cases involving physical accessibility mixed in with cases that deserve special attention because they could have a broad impact on ADA and FHA litigation. Here they are. More

The decision in Miami Valley Fair Hous. Ctr., Inc. v. Preferred Living Real Est. Investments, LLC, 2018 WL 4690790 (S.D. Ohio Sept. 28, 2018) has the potential to create a significant change in how FHA design/build cases are litigated. It also provides litigants with a treatise on the most important evidentiary issues faced by both plaintiffs and defendants. The critical take-away for apartment owners and developers is that proof of deviations from the various FHA safe harbors is not conclusive evidence of an FHA violation. That means defendants who own or build apartments that are accessible but have technical deviations from FHA design/build safe harbors will be given the chance to talk about what matters to the disabled, that is, accessibility. More

On September 25 the Department of Justice responded to a congressional plea for regulatory guidance with a firm “no.” In its letter to Congressman Ted Budd DOJ made it clear that it had no intention of restarting the regulatory process it abandoned last year and that it did not believe regulations were necessary or desirable. It did say that in the absence of regulation the failure to meet an industry standard like WCAG 2.0 AA is not necessarily proof of an ADA violation. This allows businesses to prove (if they can) that despite not meeting that or some other standard their business websites are accessible.